Eastin v. Eastin, 16177

• Decision Date: 30 July 1979
• Docket Number: No. 16177,16177
• Citation: 588 S.W.2d 812
• Parties: Chester Dale EASTIN, Appellant, v. Sherry Dean EASTIN, Appellee.
• Court: Texas Court of Appeals

Page 812

588 S.W.2d 812

Chester Dale EASTIN, Appellant, v. Sherry Dean EASTIN, Appellee.

No. 16177.

Court of Civil Appeals of Texas, San Antonio.

July 30, 1979.

Rehearing Denied Sept. 25, 1979.

Frank Y. Hill, Jr., Boerne, for appellant.

Van G. Hilley, Goodstein & Semaan, San Antonio, for appellee.

OPINION

CADENA, Chief Justice.

This is a divorce action in which appellant, Chester Dale Eastin, seeks reversal of the judgment of the trial court dissolving the marriage between appellant and appellee, Sherry Dean Eastin, and disposing of matters relating to custody of the children of the parties, support of the children, division of the community assets and liability of appellant for attorney's fees. The provisions of the decree concerning custody, support, division of property and attorney's fees are based on a written agreement signed by the parties prior to the hearing.

Appellant's contention that the judgment must be reversed because the moving party, appellee, did not prove the existence of the necessary residence requirements must be overruled. What we have before us is obviously a partial statement of facts, and the record reflects that the trial court heard testimony in chambers during a hearing at which no court reporter was present. We must presume, therefore, that the evidence which was heard by the trial court but not brought forward to this Court was sufficient to support the decree granting the divorce.

Appellant also complains that he had made known to the court that he repudiated the agreement relating to custody, support, division of assets and liability for attorney's fees before the trial court rendered its judgment on those matters.

The cause was set for trial on June 28, 1978. Prior to that date the parties had engaged in negotiations for the purpose of reaching an agreement as to the matters in dispute other than the question of divorce. On June 28, 1978, the parties finally reached agreement on all matters. The agreement was embodied in a handwritten instrument, with each attorney writing a portion of the instrument. The instrument bore the docket number of the case, the style of the case, and was captioned, "Decree and Agreement." However, the instrument is not in the form of a judgment or decree, does not purport to dispose of the question of the marriage, and is clearly nothing more than a recital of the terms of the agreement, except for reciting, "All relief not expressly granted is specifically denied. Costs 1/2 to each party."

After the parties signed the instrument, they announced to the court that they had reached an agreement and it appears that evidence concerning the suit for divorce was then heard in chambers. Apparently, the trial court announced that the divorce would be granted. The judge then signed the handwritten instrument which had been prepared by the parties. Above the court's signature there appears the statement, "Signed this June 28, 1978 after confirmed."

On July 12, 1978, counsel for appellee mailed to appellant's attorney the "necessary documents" required to carry out the agreement of the parties. On July 31, 1978, appellant's attorney told counsel for appellee that appellant was "having problems" raising the $68,000.00 which, according to the agreement, appellee was to receive in cash.

On August 4, 1978, appellee filed a "motion for entry of decree of divorce" to which was attached the divorce decree which appellee desired to be signed. The trial court set the motion for hearing on August 14, 1978, on which date, prior to the time the hearing began, appellant filed his answer alleging that the decree suggested by appellee did not accurately "recite the proceedings had on" June 28, 1978, and repudiating the agreement.

After the hearing, the trial court granted appellee's motion and signed the decree which had been tendered by appellee.

It cannot be seriously contended that the signing of the written agreement by the court on June 28 constituted the rendition of a judgment. If such action on the part of the trial court be considered a judgment, the result would be that the divorce was denied, since the instrument recites that all relief not "expressly granted" is "specifically denied" and the instrument does not purport to grant a...